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Labor board drops controversial posting rule

January 30, 2014

Ater Wynne LLP
NW Law frim

The National Labor Relations Board (NLRB) announced that it will not seek U.S. Supreme Court review of two Court of Appeals decisions invalidating its controversial posting rule. The rule required most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act, including the right to:

– Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment;
– Form, join or assist a union;
– Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions;
– Discuss terms and conditions of employment or union organizing with co-workers or a union;
– Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions; and
– Choose not to do any of these activities, including joining or remaining a member of a union.

Since the initial injunction barring the NLRB from enforcing the posting requirement, the NLRB has increased its scrutiny of employer rules and policies that could be interpreted as chilling employees’ rights to engage in concerted activity. The policies and rules that tend to be problematic are those that could be construed as limiting employee communication about working conditions and terms of employment, including social media, confidentiality, and non-disparagement policies. Such policies routinely come under review when the NLRB receives a charge alleging an unfair labor practice (ULP), even when the ULP does not implicate the particular rule or policy. Given the NLRB’s decision to abandon the posting rule, its scrutiny of employer policies is likely to continue in 2014.

  
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